Vice-Chancellor, in the British Museum case, did not doubt that the covenant there, although it did not run with the land, would be enforced in equity against the alienee; all that he doubted was the intention, upon the construction of the covenant, to restrain the erecting of buildings northwards, with a view to the enjoyment of Southampton House; and Lord Eldon went upon the change of circumstances, and not upon the want of jurisdiction, which he appears never to have doubted in any of these cases; and yet the opinion of the Court in Keppell v. Bailey would strike at all these cases, on the ground that the covenant was an illegal attempt to enforce restrictions on an alienee of land, which the law does not allow. Collins v. Plumb and the British Museum case prove that equity will not interfere where there would be no damage to the covenantee, where the change of circumstances would render it inequitable, or where the remedy lies peculiarly at law from the nature of the act to be done or to be refrained from, and the damages to result by the breach. 88. My anxiety is only to examine the important legal principles laid down in the above case. Upon the case itself, therefore, I shall merely suggest to the learned reader, that the agreement (independently of questions upon the Railway and Canal Act), was a legal one, and the effect of it was to bring the business of the furnaces partially into the stock of the sub-railway company, "whilst the then owners, their executors, administrators, or assigns, should be proprietors or lessees, or occupiers of the furnaces." To this there could be no objection, and as the purchaser bought with notice, and could have performed the obligation, he was bound to do so, and to abstain from making a new railway in order to avoid the necessity of using the old way. And beyond the general principles of a court of equity, there was this further ground, that the purchaser left his vendor exposed to an action for a breach of the covenant, of which he had notice, and which he alone was enabled *to perform (). There were other points in the case to which I do not advert, which in the opinion of the Court rendered it unnecessary to decide the points which we have been considering, and a question might perhaps have been raised upon the necessity of the unity of title to the railway shares and the furnaces. 89. In a late case before Shadwell, V. C. (m), which has been (1) See 5 Mod. 374; City of London . Richmond, Prec. Cha. 156; 2 Vern. 241. (m) Whatman v. Gibson, 9 Sim. 196; and see Hatton v. Waddy, 1 Hay. & Jo. 601. reported since the above observations were published, the owner of a large piece of ground which was laid out in lots for building a row of houses, having sold some of the lots, he and the purchasers executed a deed whereby he declared that it should be a condition of the sale of all the lots that the several proprietors should observe the stipulations in the deed. And then the parties mutually covenanted that they and all others who should at any time execute the deed should observe certain rules in regard to the houses to be erected, and by one they were restrained from carrying on certain trades in them. This restriction was held to be binding in equity on a purchaser with notice, although he had not executed the deed, but claimed derivatively through a purchaser who had, and it was deemed no objection that the plaintiff who sought an injunction had not himself executed the deed, as he claimed direct through a purchaser who was considered to have done so. The defendant insisted that the restrictions were not in law binding upon hin, for that such covenants were not only void, as being in restraint of trade, and without mutuality, and against the policy of the law, but were collateral and did not run with the land, and that there was no privity. The Vice-Chancellor observed that it was quite clear that all the parties who executed the first deed were bound by it, and he saw no reason why such an agreement should not be binding in equity on the parties coming in as devisees or assignees with notice: each proprietor was manifestly interested in preserving the general respectability and uniformity of the row. Whatever might be the form of the covenant, or whatever difficulty there might be in bringing an action on it, he thought there was a plain agreement which a court of equity ought to enforce, and although no case might arise at law upon the covenant there might be a question on the deed which would demand the opinion of a court of equity, and therefore he granted an injunction to prevent the defendant from converting his house into a tavern contrary to the deed. This decision we may observe is fully warranted by the cases previous to that of Keppell v. Bailey. *90. The real property commissioners propose that the burthen of all covenants entered into by owners of land shall not, for the purpose of conferring a legal right of action, run with the land, reserving the jurisdiction of equity to interfere by injunction or otherwise for enforcing the due performance of such covenants in all cases in which such courts may deem it proper so to do, but that all such covenants may remain binding as personal obliga tions, and of the nature of specialties (n). It would be better perhaps to leave the law as it stands than thus to alter it. An attempt at legislation on this head would, I fear, lead to grave difficulties, which may readily be avoided by a steady adherence to principle in judicial decisions on the subject. 91. Mr. Preston (0) observes, that purchasers in general attach more value to covenants for title than they are worth. Considering the property of parties, the chance of eventual insolvency, &c., covenants rarely produce the benefit which is expected from them, and when the property is subdivided by sales, it seems to follow from a maxim of law, that the purchasers lose the benefit of the former covenants, on the ground that the remedy cannot be apportioned, or in more correct terms, the covenantor cannot be subjected to several actions. Thus, where a man sells two farms to A, and covenants with him, his heirs, and assigns, and one of these farms is sold by A to B, B can never sue on this covenant, since it would subject the covenantor to several actions. 92. The better opinion however seems to be, that an alienee of one of the estates could maintain covenant against the covenantor where the covenants' run with the land, and as such, an action would lie either for damages, which would be measured by the loss of the assignee, as far as he might he entitled to recover it under the covenant, or for an act to be done, e. g. further assurance, which might properly be confined to the particular proportion of the property. It does not seem that any injustice would arise by suffering several covenants to lie, although it might expose the covenantor to inconvenience, whereas the denial of the right to each assignee might lead to positive injustice, or if not, to greater inconvenience on their part (p) (1). (n) Third Report, 55, 56. (p) See Hare v. Cator, Coop. 766; Stevenson v. Lambard, 2 East, 575; Twynam v. Pickard, 2 Barn. & Ald. (1) Where a covenant running with the land, is divisible in its nature, if the entire interest in different parcels of the land passes by assignment to separate individuals, the covenant will attach on each parcel pro tanto. Astor v. Miller, 2 Paige, 68. The assignee of an undivided moiety of leasehold premises, can maintain an action in his own name upon a covenant of warranty contained in the original lease. Van Horne v. Crain, 1 Paige, 455. *SECTION II. TO WHAT ACTS COVENANTS FOR TITLE EXTEND. 2. Five distinct covenants. act not proceeding from covenantor. 3. Covenant where the seller has a pow- 18. Appointee a person claiming under er. 5. Do not extend to tortious evictions. 7. Or the seller himself assert his title. 9. 10. General covenant with an exception. 11. Jerritt v. Weare. 12. 13. Observations upon it. covenantor. 21. Quit-rents incident to tenure within general covenant. 22. Arrear by default: Howes v. Brushfield. 23. Observations upon it. 24. Default includes persons whom the covenantor might have barred: Lady Cavan v. Pulteney. 25. Observations on the two last cases. Covenant for right to convey extends 26. Arrear of land tax. 1. Ir hath already been observed (a), that the covenants usually entered into by a vendor seised of the inheritance, are, 1st, that he is seised in fee: 2dly, that he has power to convey: 3dly, for quiet enjoyment by the purchaser, his heirs and assigns: 4thly, that the land shall be holden free from incumbrances and lastly, for further assurance (1). 2. The five covenants are several and distinct, but the first and second of them are synonymous (2); for if a man be seised in fee, (a) Supra, ch. 13, s. 3. (1) See 2 Cruise Dig. by Mr. Greenleaf, Vol. 4, Tit. 32, Ch. 26, § 46 et seq. and notes. (2) Marston v. Hobbs, 2 Mass. 437, Per Parsons Ch. J.; Slater v. Rawson, 1 Metcalf, 450; Willard v. Twitchell, 1 N. Hamp. 177. But see Triplett v. Gill, 7 J. J. Marsh. 436. he has the power to sell (b). osition is not universally true (c). But the converse of this prop 3. A man having merely a power to appoint an estate, cannot be said to be seised in fee of the estate, although he has a right to convey and accordingly, in cases of this nature, it is usual to *omit the first covenant, and to insert a covenant that the power was well created, and is not suspended or extinguished. 4. Covenants for title are either general and unlimited, extending to the acts of all the world, or limited and restricted to the acts of certain persons named in the deed; and under this branch of our subject we may consider, 1st, to what and against whose acts general and limited covenants extend: 2dly, in what cases restrictive words shall or shall not extend to all the covenants in the deed and 3dly, to what remedy a purchaser is entitled under covenants for the title, in case he is evicted, or the title prove bad. 5. First then, although covenants are general and unlimited, and are not restricted to the acts of persons claiming lawfully, yet it is now settled (d), although the contrary was formerly holden (e), that such a covenant shall not extend to a tortious eviction, but to evictions by title only (1); because the law itself defends every one (b) Nervin v. Munns, 3 Lev. 47; Browning v. Wright, 2 Bos. & Pul. 13. (c) See 4 Cruise's Dig. 78, s. 30. (d) Dudley v. Foliott, 3 Term Rep. 584. See Dy. 238 a, marg.; and Crosse v. Young, 2 Show. 425, and the cases cited in the note to 3 Term Rep. 587; in some of which, however, the point was not decided, but a distinction was taken between express and implied cove nants. (e) Mountford v. Catesby, Dy. 328 a. See 1 Ro. Abr. 430, pl. 12; Shep. Touch. 166, 170; Anon. 1 Freem. 450, pl. 612; Anon. 2 Ventr. 46; Anon. Loft. 460. (1) Ellis v. Welch, 6 Mass. 246, 252; Per Spencer J. in Greenby v. Wilcocks, 2 John. 4; Per Kent Ch. J. in Folliard v. Wallace, 2 John. 402; Kent v. Welch, 7 John. 259; Sedgwick v. Hollenback, 7 John. 376; Van Slyck v. Kimball, 8 John. 198; Vanderkarr v. Vanderkarr, 11 John. 122; Twambly v. Henley, 4 Mass. 442; Hamilton v. Cutts, 4 Mass. 352; Mitchell v. Warner, 5 Conn. 497; Duvall v. Craig, 2 Wheaton, 45, 61; Yancy v. Lewis, 4 Hen. & Munf. 390; Fowler v. Poling, 6 Barbour Sup. Ct. Rep. 165; Sterling v. Peet, 14 Conn. 245; Loomis v. Bedel, 11 N. Hamp. 74; Beebe v. Swartwout, 3 Gilman, 162; Rantin v. Robertson, 2 Strobh. 366; Davis v. Smith, 5 Geo. 274; Witty v. Hightower, 12 Smedes & Marsh. 478; Naglee v. Ingersoll, 7 Barr, 185; Simpson v. Hawkins, 1 Dana, 306; Kelly v. Dutch Church, 2 Hill, 105; 2 Greenl. Ev. § 214. The covenants for quiet enjoyment, and of general warranty, require the assignment of a breach by a specific ouster, or eviction, by a paramount legal title. 4 Kent, (6th ed.) 479; Clark v. M'Anulty, Serg. & Rawle, 364; Jones v. Agnew, 1 Ham. (Ohio,) 389; Rickert v. Snyder, 9 Wendell, 416; Prescott v. Trueman, 4 Mass. 627; Pollard v. Dwight, 4 Cranch, 421; Boothbay v. Hathaway, 20 Maine, 251. But to authorize a recovery by a grantee upon the covenants of warranty, an eviction by legal process is not necessary. He may surrender possession to the rightful owner; and that will be a sufficient ouster to entitle him to his ac |